Last edited: February 14, 2005



John Doe, Mark Roe, Kim Nyhus,
Phil Duran, Jane Doe, Erin Krebs, and
Jared Frandson, and the Minnesota
Lavender Bar Association, on behalf
of its members,


v.                                                                 ORDER AND MEMORANDUM
                                                                 File No. MC 01-489

Jesse Ventura, Governor of the
State of Minnesota, Mike Hatch, Attorney
General of the State of Minnesota, and the
State of Minnesota,


The above-entitled matter came on for hearing before the Honorable Delila F. Pierce, one of the judges of the above-named court, on the 19th day of April, 20011 on Plaintiffs' motion for summary judgment at the Hennepin County Government Center, Minneapolis, Minnesota 55487

Timothy E. Branson, Esq., appeared for and on behalf of Plaintiffs; David M. Aafedt, Esq., appeared for and on behalf of the Defendants .

Now, therefore, based on the files, records and proceedings and the arguments of counsel:


1. Plaintiffs' motion for summary judgment is granted as follows: the Court declares Minn. Stat. 609.293 to be unconstitutional, as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution.

2. The attached Memorandum is incorporated herein and made a part of this Order.




Dated: May 15, 2001                            Delila F. Pierce
                                                          Judge of District Court



This matter comes before the Court on Plaintiffs' motion for summary judgment. Plaintiffs seek a declaration that Minn. Stat. 609.293 unconstitutionally infringes upon their right to privacy guaranteed by the Minnesota Constitution.


Minn. Stat. 609.293, subd. 5, states: "Whoever … voluntarily engages in or submits to an act of sodomy with another may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both." Sodomy is defined as "carnally knowing any person by the anus or by or with the mouth." Minn. Stat. 609.293, subd. 1. In its present form, the sodomy statute only encompasses voluntary acts between consenting adults.

The individual plaintiffs represent a cross section of Minnesotans impacted by the sodomy statute. Their individual circumstances and the ways in which the sodomy statute negatively impacts their lives vary. However, negative repercussions from the statute include: fear of arrest and prosecution; the possible loss of or interference with rights to visit children; possible eviction for violation of lease requirements of lawful conduct; the complete elimination of possible or desired sexual intimacy for disabled, gay, or lesbian adults; and the fear of adverse effects on professional teaching, lawyer, and physician licensure.

With regard to licensure, the state-mandated application for a medical license requires applicants to swear under oath that they have "not engaged in any of the acts prohibited by the statutes of Minnesota." Likewise, the Preamble to the Minnesota Rules of Professional Conduct for lawyers state that "[a] lawyer's conduct should conform to the requirements of the law, both in professional service...and in the lawyer's business and personal affairs."


Summary Judgment Standard

The Plaintiffs ask this Court for summary judgment. The purpose of summary judgment is to determine whether or not issues of fact exist, not to resolve issues of fact. Albright v. Henry, 285 Minn. 452, 174 N .W .2d 106 (Minn. 1970). Under Minnesota Rules of Civil Procedure, summary judgment will be entered when:

...the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that either party is entitled to judgment as a matter of law.

Minn.R.Civ.P. 56.03 (1998); Asmus v. Ourada, 410 N. W .2d 432 (Minn.Ct.App. 1987). Summary judgment can be properly rendered only where there is no genuine issue as to material fact and where a determination of the applicable law will resolve the controversy. Abdallah, Inc. v. Martin, 242 Minn. 416, 65 N.W.2d 641 (Minn. 1954). The Minnesota Supreme Court has stated that the "burden is on the moving party to show the absence of any material fact." Bixler, 376 N. W .2d at 215 (citing Barilla v. Clapshaw, 237 N.W.2d 830, 831 (Minn. 1976)); see also Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). When determining whether the moving party has sustained its burden the Court must view the evidence in a manner most favorable to the nonmoving party. See Sauterv. Sauter, 70 N.W.2d 351,353 (Minn. 1955); Ritterv. M.A. Mortenson Co., 352 N. W .2d 110' 112 (Minn. Ct. App. 1984) (citing Greaton v. Enich, 185 N. W .2d 876, 878 (Minn. 1971 )). All doubts and factual inferences must be resolved against the moving party and in favor of the nonmoving party. Nord v. Herreid, 305 N .W .2d 337, 339 (Minn. 1981); see also Oempsey v. Jaroscak, 188 N.W.2d 779, 781-82 (Minn 1971). A motion for summary judgment should be denied if reasonable persons might draw different conclusions from the evidence presented. Carl v. Pennington, 364 N.W.2d 455, 457 (Minn. Ct. App. 1985).

When the moving party has satisfied its burden, the nonmoving party must then show the existence of a genuine issue of material fact. Bixler, 376 N.W.2d at 215 (citing Continental Sales and Equipment Co. v. Town of Stuntz, 257 N. W .2d 546, 550 (Minn. 1977)). In order to successfully oppose a motion for summary judgment, the nonmoving party cannot rely upon mere averments or denial set forth in its pleadings but must present specific facts showing that there is a genuine issue for trial. MINN. R. CIV. P. 56.05; see Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). The party opposing summary judgment must "extract specific, admissible facts from the voluminous record and particularize them for the trial judge." Gunnufson v. Onan Corporation, 450 N. W .2d 179, 182 (Minn. Ct. App. 1990) (citing Kletschka v. Abbott-Northwestern Hospital, Inc., 417 N. W .2d 752, 754 (Minn. Ct. App. 1988) (emphasis in original) pet. for rev. denied (Minn. March 30, 1988)).

Moreover, "[t]he Court is not required to save the non-moving party by drawing unreasonable inferences." City of Savage v. Varey, 358 N. W .2d 102' 105 (Minn. Ct. App. 1984). If the nonmoving party ultimately fails to present specific facts indicating that a genuine issue of material fact exists, summary judgment is proper. Hunt, 384 N.W.2d at 855.


In support of their motion for summary judgment, Plaintiffs argue no facts are in dispute in this case. Moreover, Plaintiffs say, the constitutionality of a statute is a question of law. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).

Defendants concur with Plaintiffs' statement of facts. Defendants acknowledge that although the Minnesota Supreme Court recognized for the first time that a right of privacy exists under the Minnesota Constitution, it refused to extend the constitution's privacy protection to those "who engage in commercial sex." State v. Gray, 413 N. W .2d 107' 114 (Minn. 1987). Defendants argue that in so doing, the Supreme Court acknowledged that consensual, non-commercial sexual conduct may well be protected by the Minnesota Constitution's right of privacy. See id. at 114 ("Today's decision is limited to a holding that any asserted Minnesota constitution privacy right does not encompass the protection of those who traffic in commercial sexual conduct.") Defendants point out that the Supreme Court has subsequently extended the state constitutional right of privacy to other contexts, including a mentally-ill person's ability to refuse neuroleptic medication in non-emergency situations. Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988); see also Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995).

Defendants maintain the Gray decision and its progeny certainly reflect a trend that the Minnesota Supreme Court is willing to read broadly the right of privacy under the Minnesota Constitution. However, Defendants argue, the Minnesota Supreme Court has not yet had the opportunity to decide squarely the issue of whether the state constitutional right of privacy extends to consensual, non-commercial sex. Accordingly, Defendants say, this Court must adjudicate that issue, which is determinative of whether 609.293 is valid under the Minnesota Constitution.

Justiciability and Standing

Plaintiffs argue that in light of (1) the relaxed standards applicable to declaratory judgment actions and (2) the decisions in similar and other cases holding that an on-going criminal prosecution is not a prerequisite to standing, Defendants have not contested that this is a justiciable controversy and that one or more Plaintiffs has standing to pursue this constitutional challenge.

"A justiciable controversy exists when there is 'a genuine conflict in the tangible interests of opposing litigants.'" Lefler v. Lefler, 602 N.W.2d 420, 422 (Minn. App 1999). Plaintiffs say, the Minnesota Supreme Court has expressly recognized with respect to justiciability that there is latitude allowed under the declaratory judgment provisions to settle uncertainties prior to full-blown development. See Holiday Acres No 3 v. Midwest Federal Savings and Loan Association, 271 N.W .2d 445,447 (Minn. 1978).

The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interest, of sufficient immediacy and reality to warrant the issue of a declaratory judgment. Id. citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 828-29 (1941).

The declaratory judgment statute is remedial and it is to be liberally construed and administered. Minn. Stat. 555.12 (1994).

Here, Plaintiffs argue, there is no doubt there is a genuine conflict between the tangible interests of individuals subject both to prosecution and collateral consequences from 609.293 and the interests of the State of Minnesota and its officials responsible for law enforcement and defending laws against legal challenge. Likewise, Plaintiffs assert, there is no doubt that standing exists here. "A litigant has standing when he or she has suffered an actual injury or otherwise has a sufficient stake in a justiciable controversy to seek relief from a court." Lefler v. Lefler, 602 N.W.2d 420, 422 (Minn App. 1999). In this case, Plaintiffs emphasize, there is such sufficient stake because the Plaintiffs are individuals who engage in proscribed conduct and as a result face the risk of arrest and other potential adverse consequences with respect to disclosure of their conduct.

Plaintiffs point out that the U.S. Supreme Court has made clear the fact that a person does not have to wait to be arrested or charged to challenge the constitutionality of a criminal law. See Babbitt v. United Farm Workers, 442 U.S. 289, 302 (1979) (finding standing to challenge publicity provisions of a criminal statute governing agricultural employment relations in absence of prosecution); see also United Food and Commercial Workers International Union v. lap, Inc., 857 F.2d 422, 428 (8th Cir. 1988) (citation omitted) ("Where plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement."

Plaintiffs argue in the absence of repeal or an effective disavowal of an intent to enforce a statute, a party has reason to fear prosecution. Babbitt, 442 U.S. at 302. Plaintiffs reason that even when a state has a current intention not to enforce a statute this is not sufficient to deny a Plaintiff standing because "'[p]resent intentions may not be carried out', and ‘it is not certain that changes in leadership or philosophy might not result in reinstitution of the [challenged] policy.'" United Food, 857 F.2d at 430.

Additionally, Plaintiffs stress it cannot credibly be argued there is no standing or justiciable controversy in this case because the Minnesota sodomy statute is moribund. Plaintiffs say the Legislature has repeatedly rejected bills to repeal the statute which indicates the Legislature expects the law to be enforced, and the Minneapolis Police Chief publicly stated he expected his officers to enforce the statute.

Apart from the risk of arrest, Plaintiffs argue that they and others also face the risk of collateral injury from the sodomy statute. Plaintiffs point out, for example, Dr. Krebs, who is now in her residency, faces the prospect of having to state under oath, as part of her application later this year for a physician license from the Minnesota Board of Medical Practice, that she has "not engaged in any of the acts prohibited by the statutes of Minnesota." Similarly, Plaintiffs reiterate, Mr. Roe, a licensed elementary school teacher, and Mr. Duran and Ms. Doe, licensed Minnesota lawyers, fear adverse licensure consequences from any disclosure, voluntary or otherwise, of their past and future violations of 609.293.

Relying in part on potential adverse licensure consequences for lawyer-plaintiffs who engage in sodomy, and following Babbitt, Plaintiffs stress that a court in another sodomy case found standing (and justiciability) in the absence of an on-going criminal prosecution. See Williams v. State of Maryland, 1998 Lexis 260 *13 (Bait. City Cir. Ct. Oct. 15, 1998).

The Minnesota Constitution's Right to Privacy.

The Minnesota Supreme Court first recognized the right of privacy under the Minnesota Constitution in State v. Gray, 413 N.W.2d at 111 ("[I]t is our opinion that there does exist a right of privacy guaranteed under and protected by the Minnesota Bill of Rights.") At that time, the Court did not decide whether the Minnesota right of privacy is more or less broad or the same as the right of privacy under the U.S. Constitution. Id. at 114.

Plaintiffs argue that since Gray, the Minnesota Supreme Court has made clear the Minnesota right is a fundamental right that is more broad than the comparable federal right, and that the Minnesota right is specifically rooted in Article I, Sections 1, 2, 7, and 10 of the Minnesota Constitution. See State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992) ("[T]he privacy guaranteed under [A]rt I, 1 , 2 and 10 is broader than the privacy right read into the comparable federal constitutional provision."); Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) ("[t]his holding is specifically made under Minn. Const. art. I, s. 1, 2, 10 and not pursuant to any law or provision of the United States Constitution"); Women of the State of Minnesota v. Gomez, 542 N.W.2d 17, 42, n. 10 (Minn. 1995) (the Minnesota right of privacy is also rooted in Article 1, 7).

Plaintiffs insist that Minnesota courts have repeatedly applied the Minnesota right to invalidate statutes or circumscribe law enforcement in settings where the federal right supported a different conclusion. See, e.g., Gomez, 542 N.W.2d at 28-32. In that case, the Minnesota Supreme Court declined to follow the Supreme Court's decision in Harris v. McRae, 448 U.S. 297 (1980), and instead recognized the right of privacy under the Minnesota Constitution encompassed the right to choose to have an abortion and held that state laws permitting the use of public funds for childbirth-related medical services, but prohibiting the similar use of public funds for medical services related to abortion, violated the right of privacy.

Additionally, Plaintiffs emphasize, in Ascher v. Commissioner of Public Safety, 519 N.W.2d 183, 186-87 (Minn. 1994), the couri declined to follow Michigan Dep’t of State Po/ice v. Sitz, 496 U.S. 444 {1990), and instead held that warrantless searches at sobriety checkpoints were unconstitutional under the Minnesota Constitution.

Plaintiffs believe the existence and broader scope of the separate Minnesota right of privacy is important in this case given Bowers v. Hardwick, 478 U.S. 186 (1986), where the U.S. Supreme Court held (5-4) that the U.S. Constitution did not protect non-commercial sodomous acts by consenting adult homosexuals in private. Other state supreme courts have struck down sodomy laws based on the privacy protections of their state constitutions. See Gryczan v. State, 942 p .2d 112 (Mt. 1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ken. 1993) (criminal sodomy statute violates state constitutional rights of privacy and equal protection). Also, when confronted with a state constitutional privacy challenge to the same sodomy statute upheld in Bowers, the Georgia Supreme Court struck it down because it violated the state constitutional right of privacy. See Powell v. State, 510 S.E.2d 18, 23-26 (Ga. 1998).

M. S. 609.293 Infringes on the Right to Privacy

Plaintiffs contend the Minnesota right to privacy is founded, in significant part, on individual authority over one's own body. See Gomez, 542 N.W.2d at 27. "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Id. (citing Jarvis, 418 N.W.2d at 149). Hence, Plaintiffs believe the activities at issue in this case fall within the protections afforded by the Minnesota right to privacy.

Plaintiffs argue that in prohibiting oral sex and other acts of sodomy, the statute criminalizes intimate acts considered an important part of the intimate relationships of many adults, both heterosexual and gay/lesbian, married and unmarried. They emphasize that few matters are considered more private than sexual relations between consenting adults and few activities more fundamentally involve the control of one's own body. Hence, Plaintiffs say, M.S. 609.293 infringes on the right of privacy.

Compelling State Interest

Plaintiffs argue that since 609.293 infringes the right to privacy, the issue then becomes whether the infringement is constitutionally justified. See Humenansky v. Minnesota Board of Medical Examiners, 525 N.W.2d 559, 567 (Minn. App. 1995). They state that a regulation that imposes a burden on a fundamental right can be justified only by a compelling state interest that is narrowly tailored to advance that interest. Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983) ("Strict scrutiny is required when a fundamental right is limited. . .; the law will be upheld only if it is necessary to serve a compelling governmental interest"); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 n. 14 (1985). Plaintiffs maintain that because 609.293 serves no compelling state interest, the statute must be struck down as unconstitutional, as applied to private, non-commercial acts, of sodomy by consenting adults.

Plaintiffs assert that in defending sodomy statutes, other states have attempted to advance the justification that such statutes protect or promote morality. See, e.g., Powell, 510 S.E.2d at 25; Gryczan, 942 p .2d at 124; Campbell, 926 S.W.2d at 264; Commonwealth v. Wasson, 842 S.W. 2d at 497. Plaintiffs stress that when public morality is used as a basis to justify an infringement on a fundamental individual right, it cannot be divorced from the broader concept of public welfare. "With respect to regulation of morals, the police power should properly be exercised to protect each individual's right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others." Commonwealth v. Bonadio, 415 A.2d 47, 50 (Pa. 1980) (striking down state sodomy statute).

The Supreme Court of Kentucky, in striking down the state's sodomy statute as a violation of the state constitutional right to privacy, held that "'[t]he power of the state to regulate and control the conduct of a private individual is confined to those cases where his conduct injuriously affects others.'" Wasson, 842 S.W.2d at 496 (quoting Commonwealth v. Smith, 173 S.W. 340, 343 (1915)). The Wasson court further stated:

With respect to the regulation of morals, the police power should properly be exercised to protect each individual's right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. No harm to the secular interest of the community is involved in atypical sex practice in private between consenting adult partners.

Many issues that are considered to be matters of morals are subject to debate, and no significant state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority. ...Enactment of the voluntary deviate sexual intercourse statute, despite that It provides punishment for what many believe to be abhorrent crimes against nature and perceived sins against God, is not proper in the realm of the temporal police power.

Wasson, 842 S.W.2d at 498 (citations omitted). See also Powell, supra (rejecting "social morality" as compelling state interest justifying Georgia sodomy statute); Gryczan, supra (rejecting "public morality" as compelling state interest justifying sodomy statute); Campbell, supra (same).

Plaintiffs emphasize that from this principle distinguishing public morality from private morality, it follows that where an exercise of the police power does not directly further the public welfare, either by encouraging some public benefit or inhibiting some public harm, a simple assertion that the particular exercise of state power furthers a moral interest does not provide a compelling basis for state action that infringes a fundamental right. They say that where an alleged interest in public morality is not demonstrably connected to the furtherance of the public welfare, courts have not been reluctant to find such "morality" to be a thin disguise for private, albeit majoritarian, prejudice. Accordingly, Plaintiffs say, in Loving v. Virginia, 388 U.S. l, 11 (1967) , the U.S. Supreme Court invalidated a miscegenation statute. In a similar context, involving the removal of the custody of a child from a woman who had entered into an interracial second marriage, the U.S. Supreme Court emphasized the principle that while the law may be compelled to co-exist with private bias, it cannot give effect to those biases. Pa/more v. Sidoti, 466 U.S. 429, 433 (1984).

Plaintiffs say there is a similarity between the morality invoked in the name of prohibitions on interracial marriage and the segregation of the races generally, and the morality invoked by those who defend prohibition on sodomy. They believe both reflect values deeply imbedded in the social morality of many areas and people of the U.S. and invoked under the authority of both God and nature. See State v. Gibson, 36 Ind. 389, 404 (1871) (observing that interracial marriage is clearly prohibited by divine origins of natural law). But, Plaintiffs assert, appeals to natural or theological ethics cannot constitutionally be used to legitimate laws that simply do not advance public welfare.

Plaintiffs urge this Court to declare 609.293 unconstitutional. Plaintiffs recognize that in so doing, the Court will be departing from the decision in Bowers, 478 U.S. 186, which was recently followed in State v. Smith, 766 So.2d 501 (La.2000) (sustaining state sodomy statute against challenge as a violation of state right of privacy). Plaintiffs say there are good reasons, in addition to those set forth above, not to follow the analysis in Bowers.

While Bowers held that the federal right to privacy did not prohibit Georgia from enacting its sodomy statute, the Georgia Supreme Court subsequently found the same law barred by the broader privacy protections of the Georgia Constitution. See Powell, supra. Plaintiffs argue the same result should be reached under the Minnesota right of privacy, which is likewise more broad than the federal right of privacy.

Moreover, Plaintiffs contend, the persuasiveness of the Bowers analysis, even with regard to the federal privacy right, is seriously in doubt. They say numerous commentators have criticized Bowers as a departure from the privacy doctrine established in the Supreme Court's own prior decisions. And in 1990 former Justice Lewis Powell publicly stated his vote with the five-justice majority in Bowers was probably a mistake and that the dissent had the better of the argument. He also revealed that his was the deciding vote that made the decision 5-4.

Plaintiffs maintain that while Smith relies heavily on Bowers, the pillars of Smith cannot withstand scrutiny. The Smith court recounts the historical prohibitions against sodomy for the purpose of demonstrating that any constitutional right to engage in sodomy is inconsistent with the original intent of the Louisiana Constitution. Smith, 766 So.2d at 506-09. However, Plaintiffs say, as evidenced by decisions like Gomez, which labor to effectuate the constitutional rights recognized by Minnesota courts, original intent and history are not necessarily the ultimate touchstone under the Minnesota Constitution. Rather, they say, the rights recognized as fundamental under the Minnesota Constitution are not limited to those expressly stated in the Constitution. See State v. Gray, 413 N.W.2d at 111.

Plaintiffs argue the second basis relied upon by the Smith court is that in a system based on the separation of powers, where the legislature constantly bases laws on notions of morality, a court is simply without authority to evaluate the legislature's morality judgments and invalidate laws based on those judgments. Id. at 509-511.

Plaintiffs suggest that whatever else one might say of the approach in Smith, and perhaps its suitability for laws subject to review under a rational basis standard, it is inconsistent with the strict scrutiny required under the Minnesota Constitution and case law for constitutional rights, such as the right of privacy, that have been recognized as fundamental. And, they say, that in applying strict scrutiny, a court is well within its proper sphere in determining whether a particular law directly advances the public welfare and, if not, declaring such law unconstitutional.


The Court finds Plaintiffs' reasoning persuasive and, accordingly, declares Minn. Stat. 609.293 to be unconstitutional, as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution.


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